4 Feb 2023

The international legal community will applaud the Indigenous Voice to Parliament

If and when Australia amends its Constitution to incorporate an Indigenous Voice to Parliament, it will be acting in compliance with its international legal obligations.  A claim that the Voice amendment would put Australia in breach of its obligations is mistaken.

The argument that the Voice amendment would put Australia in breach is premised on characterising the Voice to Parliament as a ‘special measure’ under the international Racial Discrimination Convention.  A special measure is, effectively, positive discrimination, and it is permitted only until the particular equality objective is achieved.

The ‘breach’ argument is that if the Voice is in the Constitution, then it is permanent, and so will operate even after racial equality is achieved.  As I explain below, that argument is flawed even if the Voice were a special measure. First, though, we need to be clear that the Voice is not a special measure.

The final report of the Indigenous Voice Co-design Process does not claim that the Voice is a special measure.  Rather, the Voice is a clear statement of Indigenous peoples’ human rights.  The United Nations Racial Discrimination Committee (General Recommendation No 32) warns of the need to ‘carefully observe distinctions between special measures and permanent human rights’.

Australia’s Indigenous peoples have a host of human rights under the UN Declaration on the Rights of Indigenous Peoples.  They range from political participation and the improvement of economic and social conditions, to being consulted on measures to eliminate discrimination and on strategies for Indigenous development. Human rights such as these are specific to Indigenous peoples.  They are permanent human rights, in relation to which Indigenous people in Australia will be given a voice.

In short, the Voice is a mechanism that promotes Indigenous peoples’ human rights.  It is a valid statement of those rights.  It is not an exercise in positive discrimination, and we must heed the United Nations Racial Discrimination Committee’s warning and carefully distinguish it from a special measure.

Making clear that the Voice is not a special measure is enough to answer the claim that the Voice would be in breach of international law.  But an argument that the Voice, if it were special measure, breaches Australia’s international legal obligations, is misconceived.

A special measure remains valid until and unless its particular equality objective is achieved. That objective may never be achieved, as the High Court in the Gerhardy case acknowledged when it found that the Native Title Act was a valid special measure.

Justice Mason in Gerhardy said that the fact that a special measure may need to continue indefinitely is not a breach. A special measure does not have to be discontinued if doing so would bring about a failure of the objects which justified the special measure in the first place.

The objective of the Voice is to ensure that the advice and perspectives of Australia’s Indigenous peoples are listened to by the Australian Parliament and Government.  If and when that is achieved, discontinuing the Voice would undermine the very objective that justified the Voice in the first place.

But that’s a response to an argument that is misconceived in the first place.  The Voice is not a special measure. It is a positive enactment of Australia’s Indigenous peoples’ human right to participate in political decisions that affect their economic and social conditions.  The international legal community will applaud it.

Originally published in The Weekend Australian on 4 February 2023 as ‘The voice is all about human rights, not ‘special measures’